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Pearl Meyer and Partners, executive compensation specialists and one of our sponsors, has recently produced an informative and comprehensive update on the status of various compensation related items in Dodd-Frank. We feel it is a very worthwhile read for all individuals involved in board level activities.

Proxy Access Struck Down by Courts

Additional Dodd-Frank Act Compensation and Governance Provisions Delayed

As we reached the first anniversary of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), a federal appeals court struck down implementation of the “proxy access rule” – a provision in the Dodd-Frank Act directing the SEC to issue rules designed to make it easier for shareholders to get their own nominees onto Boards.  While the court’s actions rendered universal proxy access dead for 2012, recent amendments to the securities laws would allow shareholders to file individual proxy access bylaw proposals in the upcoming proxy season.

Within a week of this ruling, the SEC announced a delay in final rulemaking for five other Dodd-Frank compensation and governance provisions, including:

  • Pay vs. Performance Disclosure
  • Ratio of Median Employee Pay to CEO Pay Disclosure
  • Clawback Implementation and Disclosure
  • Hedging Policy Disclosure
  • Regulation of Incentive Pay at Financial Institutions

The rulemaking delay announced by the SEC on these five compensation issues could defer implementation of these provisions until the 2013 proxy season.

This Client Alert discusses the above provisions in further detail and provides insight as to what we can expect on these items going forward.

Proxy Access Rule

Background

Under current rules, a company’s sitting Directors nominate a slate of Directors and the company sends that information to shareholders in the proxy materials.  While shareholders can attend the annual meeting and nominate different candidates, the proxy votes have usually been cast by that point.  The only alternative for shareholders is to launch a proxy fight by mailing out their own ballots, which can be costly and administratively burdensome.  For many years, shareholder activists have argued that this system entrenches existing Directors and management and deprives outside shareholders of their rights as owners.  The concept of “proxy access” – which was first offered by the SEC in proposed form in 2003 – is intended to open up the process by allowing certain outside shareholders access to the proxy by nominating their own members in advance of the annual meeting, with information on the alternative slate of Directors distributed by the company to all shareholders.

Dodd-Frank, SEC Rules and Litigation

Despite years of shareholder activism, the concept of proxy access did not gain real momentum until, in the aftermath of the financial crisis, Section 971 of the Dodd-Frank Act provided the SEC with authority (but not a mandate) to issue rules which allowed specified shareholders to include Director nominees in a company’s proxy materials.  Final proxy access rules were issued by the SEC on August 25, 2010 in the form of Exchange Act Rule 14a-11, with an implementation date scheduled for November 15, 2010 (which would have rendered proxy access applicable to the 2011 proxy season).  These final rules generally provided that qualifying shareholders or groups holding at least three percent of the voting power of a company’s securities and who have held their shares for at least three years, would have the right to include Director nominees in proxy materials upon meeting certain other requirements.

However, the implementation of the proxy access rule was stayed due to litigation challenging the rules.  The Business Roundtable and Chamber of Commerce filed a petition on September 29, 2010 with the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) seeking judicial review of the changes to the SEC’s proxy access and related rules as well as a request to stay the effective date of proxy access.  The SEC granted the request for a stay of the rules on October 4, 2010 pending resolution of the petition for review by the court.

Court Strikes Proxy Access

On July 22, 2011, a three-judge D.C. Circuit panel struck down the SEC’s proxy access rule, concluding the SEC violated the Administrative Procedure Act by acting “arbitrarily and capriciously” in approving Rule 14a-11 because the agency failed to properly consider the costs and benefits of the rule.  The court’s opinion contained unequivocal criticism of the rule, stating the SEC’s rule failed to:

  • adequately quantify and explain the rule’s costs, particularly when a shareholder nominee is not ultimately elected;
  • support its predictions of shareholder cost savings or benefits;
  • respond to substantial problems raised by commentators in the rulemaking process;
  • sufficiently support its conclusion that proxy access would improve Board and company performance or shareholder value;
  • address how the rule would take the place of traditional proxy contests; and
  • adequately evaluate the costs that companies could face from use of the rule by special interest groups to pursue self-interested agendas unrelated to shareholder value.

What to Expect Going Forward

The court’s action means that the SEC’s market-wide proxy access rule will not be in place for the 2012 proxy season.  While the SEC has 45 days to consider whether it will seek appeal of the ruling before the entire D.C. Circuit, it is unlikely that a majority of the nine-member D.C. Circuit will vote to hear the case in the face of an opinion issued with such a definitive rejection of a high profile initiative.  If the SEC does not seek an appeal, it will likely propose a revised and presumably narrower Rule 14a-11.  However, a new proposal is unlikely in the near term given the SEC’s heavy workload under Dodd-Frank in other areas.

Nonetheless, when the SEC adopted Rule 14a-11, it also adopted amendments to Rule 14a-8.  This amendment requires companies to include shareholder proposals in their proxy statements which would amend company bylaws to provide for expanded proxy access.  While the amendments to Rule 14a-8 were stayed by the SEC in connection with the litigation, it is likely the SEC will lift the stay as to these amendments and make the rules operative in the near future.  The revisions to Rule 14a-8 could prove to be a powerful arsenal for activist investors and potentially create more issues than the now vacated proxy access rule, as it does not have any ownership or length of holding thresholds.  Under Rule 14a-8, a shareholder need only own $2,000 worth of stock and have held it for one year, although such thresholds may be augmented by more vigorous state law requirements.

Even if Rule 14a-8 amendments are effective for the 2012 proxy season, it is unclear to what extent shareholders will submit access bylaw proposals.  If access resolutions are widespread, the argument against the SEC’s enactment of a market-wide access rule could be strengthened.  The argument against proxy access may also be bolstered if such individual proxy access proposals receive low levels of support.  Widespread resolutions may result in many companies trying to exclude such proposals by offering their own management resolutions with very high ownership thresholds.

PM&P Observation:  The fallout from suspension of a universal proxy access rule could be a proliferation of individual company proxy access rules not likely to have consistency across the investor landscape.  Individual company Boards may need to develop their own proxy access rules in reaction to proxy proposals on this matter from their shareholders.  We anticipate that Board-developed proxy access rules will most likely be fairly stringent, creating potential conflict with shareholder advocates who are generally in favor of a more liberal proxy access.

Delayed Rulemaking for Five Key Compensation-Related Dodd-Frank Provisions

While most of the other compensation and governance-related Dodd-Frank provisions have either been implemented or are likely to be effective for the 2012 proxy season (see Implementation Appendix for status of other provisions), on August 1, the SEC announced further delays for final rules in five key areas.  The delay in final rulemaking could result in postponing the effective dates of the provisions to a point beyond 2012, particularly if final rules are not ready prior to the beginning of the 2012 proxy season.

Disclosure of Pay versus Performance

Section 953(a) of the Dodd-Frank Act directs the SEC to adopt rules mandating the disclosure of the relationship of the compensation actually paid to a company’s executive officers versus that company’s financial performance, taking into account changes in the value of stock and dividends or distributions.  This disclosure may be presented graphically or in narrative form.  The Dodd-Frank Act did not specify implementation dates, but the SEC expects to propose rules between August and December, 2011, with final rules being issued between January and June, 2012.

Disclosure of CEO Pay versus Median Employee Pay

Section 953(b) of the Dodd-Frank Act directs the SEC to adopt rules mandating disclosure of the median annual total compensation of all employees (except the CEO), the annual total compensation of the CEO, and the ratio of the median employee total compensation to the CEO total compensation.  Total compensation is determined by reference to the “total compensation” column of the Summary Compensation Table.  This item has been the most controversial of the compensation disclosure items, and has generated harsh criticism regarding the difficulty of gathering such data compared to the usefulness such data will provide to potential investors and existing shareholders.

Debate has continued in Congress on the question of whether this provision should be repealed or modified, and on June 22, the House Financial Services Committee voted to recommend H.R. 1062, the “Burdensome Data Collection Relief Act,” a bill that would eliminate this requirement.  The bill still must be approved by the full House and then the Senate before repeal or amendment would be official.  While it could pass in the House, we understand that it is highly unlikely to gain Senate approval.  The Dodd-Frank Act did not specify implementation dates, but the SEC expects to propose rules between August and December of 2011, with final rules being issued between January and June of 2012.

Compensation Recovery and Disclosure (Clawbacks)

Section 954 of the Dodd-Frank Act requires that stock exchange listing standards be amended to require companies to adopt a policy providing for recovery from any current or former executive officer who received incentive-based compensation (including stock options awarded as compensation) during the three-year period preceding the date on which the company is required to prepare an accounting restatement.  The recovery policy would apply in cases where a company is required to prepare an accounting restatement due to material noncompliance with any financial reporting requirement under the securities laws, and the recovery amounts would be based on value received due to the erroneous data, in excess of what would have been paid under the restatement.  Again, the Dodd-Frank Act did not specify implementation dates, but SEC expects to propose rules between August and December of 2011, with final rules being issued between January and June of 2012.

Disclosure of Employee or Director Hedging Policies

Section 955 of the Dodd-Frank Act directs the SEC to adopt rules mandating disclosure of whether any employee or Director is permitted to purchase financial instruments, such as prepaid variable forwards, equity swaps, collars, and exchange funds, any of which are designed to hedge or offset any decrease in the market value of equity securities granted as compensation or held directly or indirectly by the employee or Director.  The Dodd-Frank Act did not specify implementation dates, but SEC expects to propose rules between August and December of 2011, with final rules being issued between January and June of 2012.

Regulation of Incentive Pay at Financial Institutions

Section 956 of the Dodd-Frank Act directed banking regulators and the SEC to examine and impose restrictions on incentive-based compensation arrangements of certain financial institutions.  Under this provision, such institutions are required to disclose to their appropriate regulator the structures of all incentive compensation to enable the regulator to determine whether such structures (i) provide any executive officer, employee, Director or principal shareholder with excessive compensation, or (ii) could lead to material financial loss.  In addition, the Act required the regulators to jointly issue rules prohibiting arrangements that they determine encourage inappropriate risks by providing any of the individuals noted above with excessive compensation, or that could lead to material financial loss.

By the end of first quarter, 2011, all relevant regulators, including the SEC, had issued proposed rules on this topic, with such guidance indicating the provision would become effective within six months after publication of the final rules.  The first annual reports were scheduled to be due within 90 days of the conclusion of each firm’s fiscal year.  As of August 1, the SEC announced that final rules would not be issued until between January and June of 2012, possibly delaying implementation and reporting under Section 956 until 2013 for calendar year filers.

Conclusions

While Directors will have a reprieve from market-wide proxy access for the 2012 proxy season, their companies are still at risk of shareholder proposals for individual proxy access.  With the Dodd-Frank Act tackling many compensation and governance related issues at once, it is not surprising that agencies required to drill down into the details of such provisions have continually delayed rulemaking schedules.  We will continue to track the feasibility of implementation for any of the other delayed provisions discussed herein during the 2012 proxy season.

Important Notice:  Pearl Meyer & Partners has provided this analysis based solely on its knowledge and experience as compensation consultants.  In providing this guidance, Pearl Meyer & Partners is not acting as your lawyer and makes no representations or warranties respecting the legal, tax or accounting implications or effectiveness of this advice.  You should consult with your legal counsel and tax advisor to determine the effectiveness and/or potential legal impact of this advice.  In addition, this Client Alert is not intended or written to be used, and cannot be used by you or any other person, for the purpose of (1) avoiding any penalties that may be imposed by the Internal Revenue Code, or (2) promoting, marketing or recommending to another party any transaction or other matter addressed herein, and the taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.

About Pearl Meyer & Partners

For more than 20 years, PM&P has served as a trusted independent advisor to Boards and their senior management in the areas of compensation governance, strategy and program design. The firm provides comprehensive solutions to complex compensation challenges through the development of programs that align rewards with business goals to create long-term value for all stakeholders: shareholders, executives and employees. The firm maintains offices in New York, Atlanta, Boston, Charlotte, Chicago, Houston, Los Angeles, San Francisco and San Jose.

SEC Approves Final Whistleblower Rules Under Dodd-Frank

Boston-based international law firm Goodwin Proctor has written an overview of the SEC’s final rules on Whistleblower. We feel it is a succinct and a worthwhile read.

On May 25, the Securities and Exchange Commission adopted the final rules to establish a whistleblower program that Congress required as part of the Dodd-Frank Act.  The program rewards individuals who provide the agency with high-quality tips that lead to successful enforcement actions for securities law violations.  The SEC received such a large number of comments in response to the proposed rules released in November 2010 that, in considering those comments, the final rules were adopted over a month later than the statutory deadline.  Companies should familiarize themselves with the important changes and update internal compliance and anti-retaliation policies to best position themselves to investigate and respond to whistleblower complaints. We list at the end of this update some practical suggestions for companies to consider when dealing with these new rules.

No Requirement that Whistleblowers Report Internally First

Most significantly, the SEC is not requiring whistleblowers to report potential violations through internal compliance programs prior to reporting them to the SEC. As provided in one of the most highly criticized provisions of the proposed rules, the final rules allow whistleblowers to be eligible to receive a bounty from the SEC even if they bypass reporting internally.  As SEC Chairman Schapiro said in adopting the final rules, the SEC seeks to strike a balance by adding provisions that incentivize, but do not require, whistleblowers to utilize internal compliance programs.  Because the SEC may be aware of information before the company is aware of it, it is critically important to have a plan in place that facilitates rapid internal investigation of allegations of wrongdoing.  The final rules will change the manner and speed in which companies must respond to whistleblower complaints, and should cause entities to rethink their internal compliance plans so as to incentivize internal reporting from whistleblowers.

Congress Created the Bounty Program in Dodd-Frank

Congress intended for the whistleblower program to reward individuals who expose violations and provide sufficiently detailed information that helps the SEC bring successful cases.  The SEC’s final rules implement Dodd-Frank’s mandate in Section 922 of that statute that a whistleblower may receive an award for voluntarily providing original information to the SEC that leads to a successful enforcement action in which the SEC obtains monetary sanctions exceeding $1 million.  The various terms and conditions of the government paying such a bounty are defined in the statute and the rules, and the award may be from 10% to 30% of the monetary sanctions collected by the government for violations of the securities laws.  Many terms are left undefined in Dodd-Frank, including the scope of the “securities laws.”  The SEC’s view is that its role in enforcement of the Foreign Corrupt Practices Act (“FCPA”), for example, means that whistleblowers whose information leads to monetary sanctions for violations of the FCPA are eligible for awards.  Recent SEC announcements of large FCPA sanctions in several cases are certain to lead to increased whistleblower reporting in the hope that a large award awaits.

The SEC’s Final Rules

The SEC’s rules provide definitions and details where the statute does not.  In particular, the rules describe who is eligible for awards by defining what it means “voluntarily” to provide the SEC with “original information,” and what “successful enforcement,” “action” and “monetary sanctions” include.  Individuals whose employers receive an SEC request or subpoena for documents, for example, may still qualify as whistleblowers eligible for an award.  If individuals are interviewed in connection with an internal investigation, they are not disqualified from whistleblower status.  Given the new whistleblower incentives, companies must continue to carefully consider whom to interview when conducting an investigation with counsel.

Other categories of individuals are excluded from eligibility, such as wrongdoers who directed or planned the misconduct, certain compliance personnel, attorneys and accountants (under most but not all circumstances) and individuals who received their information in violation of the law.  The Dodd-Frank Act excluded criminally convicted wrongdoers and certain categories of government employees, but did not address these other categories.

Whistleblowers may also recover awards for “related actions,” defined in the final rules to include judicial or administrative actions by the Attorney General of the United States, appropriate regulatory authorities, self-regulatory organizations or state attorneys general in criminal cases based on the same original information voluntarily provided by the whistleblower.  While whistleblowers cannot recover twice, the rules broaden the scope of the type of action that may lead to an award.

The procedures set out by the SEC for submitting a whistleblower tip include, among other user-friendly guidelines, an online form from the SEC’s Office of the Whistleblower, run by Sean McKessy.  The Office was mandated by the statute but has been the subject of much recent Congressional testimony concerning how it will be funded.  The final rules provide for the process and criteria that the SEC will consider when evaluating whether and how much of an award the whistleblower may receive.

Important Changes from the Proposed Rules

While many aspects of the November 2010 proposed rules stayed the same, multiple provisions of the final rules changed.  The more notable changes include the efforts to incentivize, as opposed to require, whistleblowers to report internally first:

  • The SEC lengthened the period of time (from 90 to 120 days) that a whistleblower can wait before coming to the SEC after reporting internally and still remain eligible for an award.  A whistleblower who first reports through an entity’s internal compliance procedures and, within 120 days, then reports to the SEC, can be eligible for an award as if the report was made to the SEC as of the first, internal reporting date.  The SEC uses that “look back period” so that the date by which the whistleblower’s submission is measured would be the earlier internal reporting date.
  • In reaction to comments that there may be abuses of the anti-retaliation provisions, the SEC added in the final rule that for the anti-retaliation provisions to apply, the whistleblower must have a “reasonable belief” that there has been a violation of the securities laws.
  • The final rules allow a whistleblower to obtain an award where the company passes along the information to the SEC through self-reporting after the whistleblower reports internally, thus allowing potential recovery of an award for a whistleblower who might not have otherwise received one because their evidence was not sufficiently developed to go directly to the SEC.  The whistleblower would get credit for the full information reported by the company, which might increase the amount of the reward.
  • When considering the amount of an award, the SEC can consider how much a whistleblower participated in or interfered with the internal compliance process, and can increase the amount of an award for a whistleblower’s voluntary participation in internal compliance.

Practical Preparedness

The SEC’s final rules provide a disincentive for employees to report potential wrongdoing internally, and instead incentivize whistleblowers to go directly to the SEC.  In order to maximize the internal reporting incentives, companies should revisit their whistleblower and hotline reporting and anti-retaliation policies and make them as simple and productive as possible, including reviewing training programs under those policies.  Employers should explore how best within their culture to encourage reporting internally, whether through management training or offers of perks or other benefits to those reporting true securities violation concerns.

The expansion of the rules’ look back period to 120 days may provide companies more time to investigate complaints than the proposed rules’ 90-day period, but this time is still far less than is sometimes necessary to understand fully whether violations have occurred.  The SEC has reported a steep increase in the number of tips since the Dodd-Frank’s effective date in July 2010, and it has indicated that, in order to investigate complaints, it may, where appropriate, go to companies and ask them to explain why violations did not occur.  Companies that receive such a complaint will have to act quickly to investigate and determine whether the complaint has any merit.  Establishing a plan for scoping, investigating and analyzing specific complaints will vary of course, based on the facts, circumstances and allegations involved.  Allegations involving complex accounting issues may require external expertise, and investigations of potential FCPA violations may span multiple jurisdictions, for example.  Companies should consider a plan for the mechanics of rapidly gathering information from the company’s systems, and for designating management and board responsibility for particular types of investigations.

©Goodwin Procter LLP.  All rights reserved.

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CEO Succession: Takeaways

The members of our director education affiliate Board Leaders recently held a breakfast meeting discussing CEO Succession. The following are guidelines regarding how to plan for CEO succession in both orderly and crisis scenarios.

Background

Dayton Ogden of Spencer Stuart along with Board Leaders members Willow Shire and Russ Planitzer provided perspectives on effective CEO succession planning.

Most CEO transitions are based on an orderly long-term plan. In these situations, history has shown that internal candidates are the most successful. In crises, however, the results are reversed, and outside candidates achieve better results. Most likely this is due to disruptive but positive change taking place and beneficial creative thinking.

The Boards of Directors should ensure that:

1. There is a plan in place that provides continuous assessment of internal CEO candidates. This should include identifying their professional development needs.
2. Senior HR executives should be intimately involved in designing and implementing the plan reporting to the CEO but also directly to the board on this issue.
3. The CEO in most cases should be key contributor to the plan but can not be allowed to bring forth a single candidate or favorite son.
4. An ongoing group of the board focusing on this responsibility can be a Committee of Chairs or the Governance/Nominating and Compensation Committee.
5. It is critical that the transition committee look forward ascertaining the future needs and strategic goals of the company in assessing the capabilities of candidates.

Other Considerations

1. Maintaining a list of potential external candidates and their skill set can be a valuable asset.
2. A third party search firm involved on an ongoing basis can be a contributor to this effort.
3. As part of the transition plan the board should have a crisis component which should include designated leadership to manage the crisis is well as designated leadership to manage ongoing corporate operations.
4. Boards should consider board members who are qualified based on their backgrounds to serve as interim CEOs.
5. While the competitive horse race structure for replacing the CEO can be successful there was little support for this arrangement and most felt that this can be disruptive.
6. The office of COO transitioning to CEO was generally seen as yielding mediocre results at best.
7. Smaller companies have difficulty maintaining a high level of bench strength but are still advised to have a formal program in place.
8. In these smaller companies the burden falls to the CEO or perhaps lead director to test and develop senior executives with special projects.

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Mergers and Acquisitions:  LESSONS LEARNED

The members of our director education affiliate Board Leaders recently held a breakfast meeting discussing M&A. The following are guidelines regarding how to respond when approached with a request from a major shareholder or interested third party.

A 10 MINUTE READ, well worth retaining.

IN THE BEGINNING

  • Stay close to major shareholders and understand their issues.  Be forthright and open to discussing diversification of their shareholdings.
  • Provide access to the Board.  Consider having a representative of the major shareholder on the Board.  Developing trust early on is key to handling difficult issues that can (and are likely to) arise in the future.
  • Recognize that any “deal” or “bump in the road’ is going to be very time consuming for the lead director.  Consider compensating the lead director from the beginning as an “insurance policy,” or providing “fair compensation” when such occasions arise.  It is impossible to deal with this once the action commences let alone when it concludes.

PHASE 1 (After demand is made.)

  • Line up best advisors quickly (some may have conflicts).  PR firm is important – even if you never use it.  Be prepared for leaks and how to respond.  Have possible press releases drafted.
  • If the Board is willing to commit the time, work with the entire Board as opposed to a Special Committee.  More inputs are valuable as well as resulting in more buy-in to the process.  (Given likely scheduling issues – especially on short notice, to make it work, there will need to be at least 2 calls to include all directors, with the CEO and or lead director chairing the calls.)  Ultimately, having full Board involvement/consensus improves speed to respond.
  • With any major shareholder, stress the need for confidentiality.  It is not advantageous to any party to have to negotiate under the glare of publicity.  Also, stress the responsibility that the Board has to all shareholders, not just the major shareholder.
  • Spend a lot of time considering all options.   This is a deliberative process.  Gaining consensus is important.  Getting multiple offers when the time comes is very important to maximizing value to the shareholders.
  • In deciding to accept an offer, speed to close is critical.  There is a high risk of losing customers to competitors who will seize upon this moment, as well as losing employees, especially those who feel they will not survive any merger, e.g. key corporate finance people, other support and operating functions.
  • Have few outs.  Define the agreements with all appropriate considerations, i.e. MAE clauses, walk away fees, other offers, time to close, and ticking fees.  The longer a deal goes on, the greater the risk that it will fall through, at which point the company is effectively on the auction block with much diminished value.  Any contingency fees are unlikely to compensate for the true damage.
  • Continue to spend real time with major shareholders.  You never know them well enough.
  • Understand that shareholders may/will change during the process from employees and institutions to hedge funds and speculators.
  • Define the media policy early on. Who will speak, when, and who reviews content.
  • Have the Team on an ongoing basis review any potential “whoops factors.” No surprises.
  • Minimize the number of management people who know about and are involved in evaluating/responding to various deal options.  This minimizes leaks.  The Company still needs to have really good day-to-day management running the operation.

PHASE 2 (After the deal is approved.)

  • Err on the side of less communication to the press – even after the deal is in the public domain.   Lower the profile so critical work can get done.  Minimize chances of miscommunication and elevating anxieties of employees, customers, and shareholders.
  • Be transparent with employees, recognizing that, for some, there will be layoffs.
  • Work with the acquirer on the PMI process (post-merger integration) to ensure speediness of transition and ultimate success.
  • Regularly talk with the acquirer regarding:  status of regulatory approvals and financial arrangements, particularly contingency plans and creation of a financial cushion, should capital markets deteriorate before consummation of deal.   Get to know the acquirer and develop good relations between key players, e.g., the CEOs, chief counsels, and/or CFOs.  Be proactive to help the progress of the deal.

PHASE 3 (When the deal is in jeopardy.)

  • Move quickly and decisively to get a deal that works for all parties.  It is in no one’s best interests for a deal to fail.  But be prepared to sue for non-performance.
  • Remember that the shareholder base has undoubtedly changed, which severely limits certain options. 
  • Consider using advisors for potentially negative communications to maintain flexibility and to preserve a good relationship between CEOs.
  • Consider utilizing selective directors at key “negotiating” top-to-top sessions which may enhance the level of confidence and provide perspective.
  • When difficulties are resolved, move to close the deal quickly and get the PMI process back on track.